Comments (10)

HARM

March 29, 2012 7:39 pm

If there was a Public Option in PPACA, what grounds would the Supreme Court use to overturn it?

Simple answer is: they couldn’t and wouldn’t.

The public option (aka Medicare-for-all) would have been all but bullet-proof Constitutionally speaking, because Medicare and it’s sister program, Social Security, have long been financed through well established payroll taxes (FICA), which was already deemed Constitutional decades ago by SCOTUS.

If Obama and all the insurance industry-bribed Blue Dog Democrats had actually considered Medicare-for-all in the first place, then we wouldn’t even be having this discussion. All Americans would now be enjoying a new reality where they don’t have to go bankrupt over medical costs, lose their coverage whenever they lose their jobs, get denied coverage due to pre-existing conditions, or choose between food, rent or medical insurance.

But noooo… they had to capitulate to their true masters (the banking and insurance cartels) and take it off the table from the get go. So now we’re in the current situation where the SCOTUS is probably about to overturn the industry friendly mess that is PPACA because an individual mandate forcing people to pay for private, for-profit medical insurance from state monopolies is unconstitutional, which it probably is (and a bad idea to boot).

Beverly Mann

March 29, 2012 8:16 pm

You’re spot-on, Ken, that whatever the mechanism used to create universal, or near-universal, healthcare by statute, the 5-4 crowd would be striking it down. Claiming that Congress’s Commerce Clause powers don’t authorize the mandate and alternative penalty is a canard. The real claim is that it violates the Fifth Amendment’s due process clause under a doctrine called “substantive due process,” but they’re not actually saying that, because then Social Security and Medicare would be unconstitutional, too—and that would be unpalatable, politically. But if Congress does enact Medicare-for-all, and this crowd is still intact on the Court, they’ll strike it down on fifth Amendment grounds, the political ramifications be damned.

Solicitor General Donald Verrilli is being roundly pilloried for his performance on Tuesday, and in response to an article on Slate about it, I commented:

“The criticism of Verrilli is really misplaced. The problem isn’t that Verrilli’s responses to questions asking him for a limiting Commerce Clause principle. The problem is that this case isn’t a concerned the Commerce Clause challenge at all, and that the conservative justices were doing what the challengers were doing: calling a Fifth Amendment substantive-due-process (i.e., “liberty”) challenge a Commerce power challenge. And by pretending—both Kennedy and Scalia did this—that they were unaware of the existence of a statute signed into law by Reagan requiring emergency rooms at hospitals that receive federal funds to treat people who come, or are brought to, emergency rooms, irrespective of whether or not they have insurance.

“Actually, Kennedy, who seemed to have not read the government’s brief, appeared genuinely unaware of this. Scalia, though, surely was just pretending to be unaware of it. There are two relevant markets: the marker health insurance and the market for healthcare. And, contrary to Kennedy’s claim in his widely-quoted first question to Verrilli, the ACA does not create commerce in order to regulate it. It doesn’t create commerce at all. The commerce already exists; Kennedy to visit an emergency room sometime, and just observe.

“The relevant limiting principle is not a Commerce Clause principle at all, but instead a Fifth Amendment due process principle. And the ACA doesn’t violate it, unless Social Security and Medicare, passed under Congress’s taxing power, do too. Which is why they call this a Commerce Clause case, even though their questions indicate that they know it’s not.”

I plan to post a wrap-up on AB tomorrow saying all this, but in better form.

HARM

March 29, 2012 8:31 pm

The real claim is that it violates the Fifth Amendment’s due process clause under a doctrine called “substantive due process,” but they’re not actually saying that, because then Social Security and Medicare would be unconstitutional, too—and that would be unpalatable, politically. But if Congress does enact Medicare-for-all, and this crowd is still intact on the Court, they’ll strike it down on fifth Amendment grounds, the political ramifications be damned.

I seriously doubt that would happen, because as you say, then Social Security and Medicare would be deemed unconstitutional too.

I don’t see how a public option changes the conservative case that the mandate is unconstitutional. You’d still be requiring people to be “active” and buy something, like broccoli. The public option would only offer one more option for purchasing a health insurance policy. (The public option is not single-payer.)

Relatedly, one attorney argued strongly on Monday that the complaint was against the mandate to buy insurance but not the penalty for failing to buy it. Roberts said they are inseparable, and the attorney argued otherwise. I think the attorney was fighting the notion that, in reality, he is challenging a tax (he’d lose such a challenge). If they are separable, however, then maybe the mandate could be struck and the penalty retained, along with everything else in the legislation. Where’s Solomon?

Beverly Mann

March 29, 2012 9:43 pm

You’re right, PJR, that a public option wouldn’t change anything in these arguments, for the reason you point to.

But the argument on Monday was just about the narrow issue of whether the Anti-Injunction Act, a law passed in the 1860s, bars the court from considering the constitutionality of the penalty-as-an-alternative-to-getting-insurance provision until 2015 when the penalty would be assessed. The AIA applies to lawsuits challenging “taxes.” If the penalty is considered a tax, then the AIA, based on the wording of that statute, would bar the lawsuit until 2015. The lawyer was arguing that, if so, the court could consider the constitutionality of the mandate if the mandate was viewed as separate from the penalty/tax.

Beverly Mann

March 29, 2012 9:48 pm

On second thought, I think you’re probably right that they wouldn’t go that far. In the ACA case, they can disguise what they’re really doing by calling it a Commerce Clause ruling. But with Medicare-for-all, which would be enacted under Congress’s taxing power rather than under Congress’s Commerce power, they wouldn’t have a fig leaf to hide under. So ,,,,

coberly

March 29, 2012 10:24 pm

Of course if you keep on twisting your minds to make the present facts fit some prior law it is no wonder you can’t think straight.

Having the Federal government require a citizen to do business with another citizen is a breathtaking departure from what Americans think of as their personal liberty.

The SC needs to be pretty careful when it goes that far. It did so in Brown v Board for what most people, even Southerners, believed was sufficient cause. The people did not think “bussing” was a reasonable remedy to the remaining problem of de facto segregation.

Here we have a law which is not a reasonable response to any problem the people recognize. There are other solution. And if “single payer” is something the people are not ready for. Government run hospitals and clinics paid for as simple welfare would probably answer the need.

I have no way to guess how the SC will decide. they do not strike me as honest or reasonable men. But I agree with HARM the “liberals” here have talked themselves into supporting a hard right answer because Obama painted that little red wagon blue.

the payroll tax is a tax like any other tax. if the government can tax you to pay for “defense” it can tax you to pay for your own retirement. it can also tax you to pay for health care. any “substantive due process” claim is bogus.

unless of course you really need to twist “logic” to arrive at the answer you want.

BobbyG

March 30, 2012 12:37 am

See http://bgladd.blogspot.com/2009/08/public-optional.html

coberly

March 30, 2012 10:46 am

BobbyG

thanks. if you could update and shorten it a little it might make a post here. maybe you can tell it better than i can.

Daniel Becker

March 30, 2012 1:32 pm

With all the discussion on this issue it has occured to me to wonder: Just what the hell kind of Constitution do we have such that it does not allow us to do for US what the rest of the western governance systems have done for their people? Do we actually have in place a document that will not allow us to produce a health care system with the benefits of all the other western social equivalent systems?

Or, is the question: Just what the hell kind of people do we have passing judgement on the interpretation and applicability of our Constitution such that We the People can not provide the benefits experienced in the other nations for Ourselves?

If we can get a lower cost, better outcome system that covers everyone without breaking the bank because of our Constitution, then we have more than a serious problem.